F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

OCT 3 1997

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
JERRY CRAIG COLEMAN,

No. 96-5142
(D.C. No. 91-CR-158)
(N.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Defendant-appellant Jerry Craig Coleman appeals the district courts denial

of his 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. We
affirm.
I. BACKGROUND
This is the fourth time this court has dealt with issues arising from
Colemans convictions in April 1992 for armed bank robbery, in violation of
18 U.S.C. 2113(d), and use of a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. 924(c). The record shows that Coleman and
a friend, Brian Edmond Turner, were driven to the Stillwater National Bank by
another friend, Johnny Willis. While Willis waited, Coleman and Turner, who
were both unarmed, entered the bank together. Turner went to a tellers window,
threatened her, grabbed money from her drawer, and fled in Williss vehicle.
Coleman scuffled with a security guard for control of the guards gun and was
captured. After Turner was apprehended, he entered a plea of guilty to the
offense of bank robbery.
At the end of a two-day trial, a jury convicted Coleman of bank robbery and
the use of a firearm. On direct appeal, we affirmed the convictions, rejecting
contentions of (1) insufficient evidence of Colemans involvement in armed
robbery and (2) lack of sufficient control over the security guards gun to

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constitute use of a weapon. See United States v. Coleman, 9 F.3d 1480,

1483-84 (10th Cir. 1993).
Later, Coleman filed a pro se 2255 motion, alleging numerous grounds
for relief. The district court denied the motion. On appeal, we affirmed the
district courts order on several issues, but reversed and remanded for specific
findings on Colemans claims of ineffective assistance of counsel and allegations
that the government obtained his conviction through the use of false testimony.
See United States v. Coleman, No. 95-5099, 1996 WL 3901, at **5 (10th Cir. Jan.
4, 1996). Upon remand, appointed counsel clarified Colemans allegations. The
district court held an evidentiary hearing, listened to argument of counsel, and
again issued an order denying relief. The second denial is the subject of this
appeal.
While this appeal was pending, however, Coleman filed another 2255
motion in the district court without first obtaining an order from this court
certifying that it met the standards applicable to a second or successive 2255
motion. See Coleman v. United States, 106 F.3d 339, 340 (10th Cir. 1997). 1 The
The amendments to Chapter 153 of Title 28 of the United States Code
contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
amended the procedures and standards for a second or successive 2255 motion
filed after AEDPAs April 24, 1996 effective date. The relevant language of
2255, as amended, provides:

(continued...)
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district court properly transferred the filing to this court, pursuant to 28 U.S.C.
1631. See id. at 341. The second motion challenged the 924(c) use
conviction on the grounds that the government had failed to prove that he
actively employed a firearm, as required by Bailey v. United States, 116 S. Ct.
501, 509 (1995). We observed that Bailey established a new nonconstitutional
rule of substantive law, Coleman, 106 F.3d at 341 (quoting United States v.
Barnhardt, 93 F.3d 706, 709 (10th Cir. 1996)), not a new rule of constitutional
law, as required by 2255, Coleman, 106 F.3d at 341. We therefore concluded
that the second motion failed to make the prima facie showing required by
2255, id. at 341, and denied certification, id. at 342.

(...continued)
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to contain
-(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.

These amendments applied to Colemans second petition because it was

filed after April 24, 1996.
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II. DISCUSSION
In this appeal, Coleman continues to argue that his conviction was based on
false testimony and that he received ineffective assistance of counsel. He also
injects the argument made in his second 2255 motion, concerning the use of a
firearm under Bailey. We address each issue in turn, 2 reviewing the district
court's legal rulings de novo, and its findings of fact for clear error. See United
States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996).
A.

False Testimony Issue

The prosecutions knowing use of false testimony violates due process if

that testimony contributed to the verdict. See United States v. Langston, 970 F.2d
692, 700 (10th Cir. 1992). Coleman alleges that the prosecution allowed Willis,
the driver, to testify that he was unaware of any robbery plans. At the evidentiary
hearing on remand, it became apparent that Willis had discussed the robbery with
Coleman and Turner. Although Coleman showed that Williss testimony was
false, he did not show either that the prosecutor knew of its falsity or that the
testimony had any material effect on the outcome of the trial. Indeed, truthful

Coleman has requested that we issue him a certificate of appealability so

that he may prosecute his appeal. In United States v. Kunzman, No. 96-1310 at
n.2 (10th Cir. Oct. 1, 1997), we held that 2255 petitioners who filed their
petitions in district court prior to AEDPAs effective date do not need a
certificate of appealability. Because Coleman filed his original 2255 motion on
August 2, 1994, a certificate of appealability is unnecessary.
2

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testimony from Willis would have provided additional support for the jury
verdict.
B.

Ineffective Assistance of Counsel Issue

We review claims of ineffective assistance of counsel de novo. See Hoxsie

v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997), petition for cert. filed (U.S.
June 9, 1997) (No. 96-9364). To prevail, Coleman must demonstrate that
counsel's performance fell below an objective standard of reasonableness,
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that counsel's deficient
performance was so prejudicial there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different, id. at 694.
Colemans arguments concerning ineffective assistance of counsel are
meritless. First, he asserts that counsel failed to object when the district court
refused to instruct the jury that mere presence at a crime scene is insufficient to
prove participation in the commission of an offense. If the governments case is
based on more than just a defendants presence, and the jury is properly instructed
on all elements of the crime, then a mere presence instruction is unnecessary.
United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992). See also
United States v. DeMasi, 40 F.3d 1306, 1315 (1st Cir. 1994) (quoting United
States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (further quotation
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omitted)) ([A] defendants mere presence argument will fail in situations where
the mere is lacking.). Here, Colemans activities on the day of the robbery go
well beyond mere presence in the bank. Moreover, Coleman does not allege any
errors in the jury instructions covering the elements of bank robbery.
Coleman also claims that counsel was ineffective for failing to investigate
and impeach Williss testimony and for entering into a stipulation that Turner
need not be called as a witness at trial. As we have previously discussed, the lack
of truthful testimony from Willis did not prejudice Coleman. Similarly, the
absence of testimony from Turner could not harm Colemans case. Concerning
the allegation that counsel failed to deliver a plea offer, Coleman provided no
evidence that any such offer was made.
After reviewing the entire record, we note that counsel provided Coleman
with a professional defense and conclude that his performance was neither
deficient nor prejudicial to Coleman.
C.

Use of Firearm Issue

As a general rule, this court will not consider an issue on appeal that was
not raised below. Walker v. Mathers (In re Walker), 959 F.2d 894, 896 (10th Cir.
1992). The rule, however, is not inflexible and the matter of what questions
may be taken up and resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the facts of individual
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cases. United States v. McRae, 81 F.3d 1528, 1532 n.1 (10th Cir. 1996)
(quoting Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir. 1996)
(further quotations omitted)).
We exercise our discretion to reach and dispose of Colemans challenge to
his firearm conviction under the Supreme Courts holding in Bailey that use, as
articulated in 924(c), means an active employment of a firearm. Bailey, 116
S. Ct. at 509. We agree with the government that this holding does not affect our
determination on direct appeal that Colemans struggle with the guard for
possession and control of the gun was a use sufficient for 924(c) purposes.
See Coleman, 9 F.3d at 1484.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED. Colemans motion to file supplemental briefs is
GRANTED.

Entered for the Court

Robert H. Henry
Circuit Judge

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